Karnataka

Chamrajnagar

CC/02/2010

Nanjunda swamy - Complainant(s)

Versus

M/s Mahindra & Mahindra Financial Services Ltd. - Opp.Party(s)

MR.K.M.S.

07 May 2010

ORDER

ORDER

1. The complainant  has brought the complaint against the opposite parties alleging deficiency of service.

 

1. In the complaint he has stated that he entered into the loan agreement on 02.09.2004 by purchasing the vehicle No.KA-10 -1485 cargo auto vehicle for Rs.1,39,000/-.

 

1. The 2^nd O.P. gave the loan facility to the complainant by hypothecating the  vehicle. The vehicle was sent to the 3^rd respondent and the 3^rd party delivered the vehicle to the complainant.

 

1. The complainant was paying his periodical installments  as per the existing contract between the parties. The complainant has paid Rs.1,10,000/- towards loan amount.

 

1. The O.Ps. all of a sudden took away the vehicle from him on 01.01.2010. The complainant approached the O.P.No.2 to take back the vehicle and  the 2^nd O.P.  gave  evasive reply and finally told him that the vehicle  already been confiscated and  sold the same to  other party and the complainant has no right to take back the same.

 

1. The complainant was not a chronic defaulter and he has paid installments up to Rs.1,10,000/- and the remaining petty amount yet to be paid and in order to cause  wrongful loss to him the vehicle has been taken by O.P.No.1 & 2.

 

1. The complainant approached the jurisdictional police and requested them to advise O.Ps. to gave back his vehicle  and the police advised him to approach the civil court since the matter is  civil in  nature.

 

1. The complainant personally wrote letter to the O.P.No. 1 & 2 by asking them to give back the vehicle. He was ready to pay the remaining  amount of Rs.29,000/- in one single instalment.

 

1. The O.Ps. are not prepared to accept the installments and gave back the vehicle to the complainant and the complainant has suffered mental agony.

 

1. The jurisdiction  comes to Chamarajanagar District Forum as the O.Ps. came to Chamarajanagar to deliver the vehicle through O.P.No.3. The vehicle has  also been registered in RTO office, Chamarajanagar.

 

1. The O.P.No.1 & 2 have denied the allegations made against them. They have stated that the complaint is barred by limitation.

 

1. The vehicle has been repossessed by them on 29.010.2005 and the complainant has suppressed the real facts.

 

1. The vehicle has been repossessed by them by exercising  rights available to them under the  loan agreement. The complainant is not a consumer  and cannot maintain the present complaint. The loan amount extended to the complainant was Rs.1,39,000/- for purchase of vehicle which he had to repay in 36 monthly installments.

 

1. The complainant was irregular in payment of monthly installments as agreed by him. The notice  dated 06.12.2005 was given to the complainant to repay the  outstanding amount due and take back the vehicle and inspite of that he did not come forward to pay the outstanding amount and  take back the  vehicle.

 

1. The complainant has not paid Rs.1,10,000/- as stated by him. The complainant was defaulter in repayment of remaining  amount, inspite of  reminder to him. He  voluntarily returned the vehicle on 29.10.2005. There after  the O.P. waited till December 2005  on the hope that the complainant may pay the outstanding amount and get released the vehicle. The complainant never  came forward to get the vehicle released.

 

1. The O.P. gave  final demand notice on 06.05.2005 to pay outstanding amount  and in default of the same the vehicle will be sold as per terms and conditions of the agreement. The complainant did not come forward to repay the outstanding loan amount. The O.Ps. have no other alternative but  to sell the vehicle to adjust the loan amount. The complainant is still  liable to pay Rs.36,735/-. The complainant  has not repaid the remaining balance also.

 

1. The following points arises for consideration.
   1. Whether the complaint is maintainable  before the District Consumer Forum, Chamarajanagar?

 

1. Whether the compliant barred by limitation?

 

1. Whether there was deficiency of service by the O.Ps. to the complainant?

 

1. What order the parties are entitled?

 

 

1. The finding on the above points are as follows:-
   1. Point No.1: Affirmative.
   2. Point No.2: Affirmative.
   3.  Point No.3:
   4. Point No.4:    Does not arise for consideration.

 

 

 

REASONS

1. POINT NO.1:-The complainant has filed the complaint before this Forum by alleging deficiency of service of O.Ps. in seizing the vehicle which he had hypothecated to them.

 

1. The O.Ps. have taken objection that the District Consumer Forum, Chamarajangar has no jurisdiction to entertain the complaint as the loan was advanced  at Mysore and the transactions have been done at Mysore and therefore the complaint itself is  not maintainable before this Forum.

 

1. The documents produced by them shows that the transactions have been taken place at Mysore and hypothecation agreement has to come in existence at Mysore. But the fact is that the vehicle  has been repossessed or seized by O.Ps.  within jurisdiction of the District Consumer Forum, Chamarajanagar. If this is considered it becomes clear that  part of the cause of action has arisen within the jurisdiction of this Forum and therefore the complaint brought the complainant is  maintainable before this Forum. Hence, we hold the point no.1 in the affirmative.

 

1. POINT NO..2:- The complainant has stated that the cause of action  in order to  file the petition  arose on 01.01.2010 when the O.Ps. seized his vehicle which was in his custody at Kaggalapura, Gundlapet Tq. while O.Ps. have denied  that the vehicle has been seized by them on 01.01.2010 as stated by the complainant. On the otherhand  they have stated that the cause of action has arisen on 29.10.2005 on which date the vehicle was repossessed  by them in exercise of their rights available under the terms and conditions of the loan agreement and therefore the complaint as brought is barred by limitation and no application has been filed in order to condone the delay in filing the complaint more than two years from the date of  cause of action.

 

1. In order to  find out whether the complaint is within time or not it has to be seen when the vehicle has been seized by O.Ps. from the possession of the complainant. According to the complainant the vehicle has been seized on 01.01.2010 by the O.Ps. and his affidavit is similar to that affect. The complainant has produced the documents in support of the affidavit filed by him and none of the those documents reveal when  actually the vehicle has been seized.

 

1. The account extract produced by the complainant shows that the last payment made by him towards loan repayment is 15.07.2005 and subsequently he has not made any payment as could be seen from  the account extract produced by himself. The O.Ps. have produced the account extract  showing the due by the complainant. They have stated that the installments paid by him were not on the due date  and  that the last installment paid  has been adjusted to 02.05.2005 and subsequently no installments has been paid by him. Both the account extract produced by the complainant and O.P. would show that the instalments after May 2005 has not been paid by the complainant.  The O.P. has produced the documents showing intimation sent to the Police on 29.10.2005 by telling that the vehicle has been seized by them  from the borrower Nanjunda Swamy in view of failure of payment  of installments  as agreed by him and no complaint should be entertained by the Gundlupet Police regarding  theft of the vehicle which has been seized by them.  This would probabalised the version of the O.Ps. that the  vehicle has been seized in the month of October 2005 and this also probabalised from the account extract produced  both by the complainant himself as well as the O.Ps. The seizure of the vehicle has taken that for non-payment of installments due  by the complainant and this would probabalise that the vehicle must have been seized  by the O.P. in October 2005. This would only show that it is improbable  to accept the version of the complainant  that  the vehicle has been seized on 01.01.2010.

 

1.  It can be stated from the above  that the cause of action has arisen in the month of May 2005 and the present complaint has been filed in  2010 which is barred by limitation. No application has been filed in order to condone the delay. Apart from this, the  of cause of action which the complainant  says  has arisen  is not  probabalised from the material placed by himself  as well as material placed by O.P. and  this would also shows that the complaint filed is not  within time and no application has filed in order to condone the delay.

 

1. In view of the above the complaint is barred by limitation and hence  point No.2 held in the affirmative.

 

1. Point No.3 & 4:- In view of  holding point No.2 in the  affirmative and merits of the case  need not be considered by this Forum. Hence, they does not arises for consideration.

 

1. In view of the above, following

ORDER

The complaint is dismissed as  barred by limitation.

The Parties are bear their own costs.